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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 9704 of 2010 ( @ SPECIAL LEAVE PETITION(C)NO.8779 OF 2007)

STATE OF MAHARASHTRA & ANR. ... APPELLANT(S)

VERSUS

GORAKHNATH SITARAM KAMBLE & ORS. ... RESPONDENT(S)

J U D G M E N T

DALVEER BHANDARI, J. Applications  for  exemption  from  filing  Official  

Translation and certified copy of the impugned order are allowed.

Leave granted.

Heard learned counsel for the parties. 2. This appeal emanates from the judgment of the High Court  

of Judicature at Bombay delivered in Writ Petition No.6531 of 2006  

dated 19th January, 2007.

3. Brief facts which are necessary to dispose of the appeal  

are recapitulated as under :

4. Respondent no.1 was appointed as as Assistant Teacher on  

13.02.1978.  He  filed  a   Secondary  School  Leaving  Certificate  

indicating 02.06.1949 as proof of his date of birth.  In the service  

record also consequently the same date of birth was recorded.  

5. On 23.05.2004, respondent no.1 filed an application to the  

Education  Officer  (Primary),  Zilla  Parishad,  District  Sangli  

complaining that though in the School Leaving Certificate his date  

of birth is  02.06.1949 whereas, in fact the date of birth  in the

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record  of the  Tahsildar is  03.05.1951, so  the date  of birth  be  

corrected in the service record of the respondent according to the  

record of the Tahsildar.   

6. The application, filed by the respondent no.1 was rejected  

by the Block Education Officer on the ground that the same is time  

barred and was not  filed within five years from the date of joining  

i.e. 13.02.1978. He referred to Rule 38(2)(f) of the Maharashtra  

Civil  Services  (General  Conditions)  Rules,  1981  (for  short  'the  

Maharashtra Rules, 1981') and the notification issued by the State.  

Relevant rule reads as under :

“38(2)(f): When once an entry of age or date of birth  has been made in a service book no alteration of the  entry  should  afterwards  be  allowed,  unless  it  is  known, that the entry was due to want of care on the  part  of  some  person  other  than  the  individual  in  question or is an obvious clerical error.”

7. Respondent  no.1  filed  another  application  to  the  Head  

Master,  Zilla  Parishad  primary  school,  Tujarpur,  Taluka  Walva,  

District Sangli.  This application was also rejected on 09.12.2004.

8. Respondent  no.1  again  filed  an  application  before  the  

Education Officer (Primary), Zilla Parishad, Sangli on 22.07.2006.  

When  respondent  no.1  did  not  receive  any  satisfactory  reply,  he  

filed  a Writ  Petition No.6531  of 2006  before the  High Court  of  

Judicature at Bombay.  The Writ Petition filed by the respondent was  

allowed by the impugned judgment dated January 19,2007.  The High  

Court, in paragraph 2 of the impugned judgment, noted Rule 38(2)(f)  

of the Maharashtra Rules, 1981 but while interpreting the rule, the  

High Court has virtually re-written the rule and in paragraph 5 of

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the impugned judgment, the High Court observed as under :

“....under the instructions issued, it is proved that  the  entry  should  not  be  normally  changed  after  a  period of five years....”  

The  expression  “normally”  has  not  been  used  in  the  Rules  and  

interpretation of this expression has led to an erroneous finding in  

the impugned judgment.  In the impugned judgment the High Court  

failed to give any sustainable  or acceptable reasons  as  to  why  

the  date of birth was permitted to be changed at the fag end of the  

career of  respondent no.1.

9. The High Court, in the impugned judgment, has failed to  

notice the settled legal position which is crystallized by a series  

of judgments of this Court.  All the judgments have consistently  

taken the view that change in the date of birth cannot be permitted  

at  the  fag  end  of  the  service  career.    In  the  instant  case,  

according to the Notification dated 24th December, 2008,  it is made  

clear that no alteration of the entry should be allowed after five  

years.

10. The spirit and the intention of this rule is reflected in  

a  series  of  judgments  of  this  Court.   After  the  rules,  a  

notification has been issued by the Government of Maharashtra. The  

relevant part of the notification dated 24th December, 2008 issued by  

the Finance Department, Government of Maharashtra, is set out as  

under :

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“ FINANCE DEPARTMENT Mantralaya, Mumbai 400032, dated 24th December, 2008

NOTIFICATION CONSTITUTION OF INDIA

No.MCS 1007/C.R.7/07/SER-6-In exercise of the powers  conferred  by  the  proviso  to  article  309  of  the  Constitution of India, the Governor of Maharashtra is  hereby pleased to make the following rules further to  amend  the  Maharashtra  Civil  Services  (General  Conditions of Services) Rules,1981, namely:-

1. These rules may be called the Maharashtra Civil  Services (General Conditions of Services) (Amendment)  Rules, 2008.

2. In  rule  38  of  the  Maharashtra  Civil  Services  (General  Conditions  of  Services)  Rules,  1981,  (hereinafter referred to as “the principal Rules”),  in sub-rule (2), under the heading Instruction,-

(a)  for  Instruction  No.(1)  and  (2),  the  following  Instructions shall be substituted, namely:-

“(1)  No  application  for  alteration  of  the  entry  regarding date of birth as recorded in the service  book or service roll of a Government servant, who has  entered into the Government service on or after the  16th August 1981, shall be entertained after a period  of five years commencing from the date of his entry  in Government service.

(2)  Subject  to  Instruction  (1)  above,  the  correct  date  of  birth  of  a  Government  servant  may  be  determined, if he produces the attested xerox copy of  the  concerned  page  of  the  original  birth  register  where his name and date of birth has been entered as  per the rules for the time being in force regarding  the  registration  of  birth,  and  maintained  at  the  place  where  the  Government  servant  is  born,  such  proof should be considered as an unquestionable proof  for change of date of birth in service record.....”

[Emphasis supplied] 11. According to the notification, from 16.08.1981 the date of  

birth of Government servants cannot be changed after  five years  

from 16.08.1981. Assuming this notification is applicable only for  

employees who joined after 16.08.1981, even then according to the  

'instruction(1)' of the Maharashtra Rules, 1981 that no application

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for  alteration  of  entry  regarding  date  of  birth  should  be  

entertained after a period of five years.   

The said instruction is reproduced as under :

“(1)Normally,  no  application  for  alteration  of  the  entry  regarding  date  of  birth  as  recorded  in  the  service book or service roll of a Government servant  should be entertained after a period of five years  commencing from the date of his entry in Government  service........”  

12. Apart from the notification and the said instruction this  

Court in a series of cases have categorically laid down that the  

employees should not be permitted to change the date of birth at the  

fag end of his service career.  In the instant case the application  

of alteration has been filed at the fag end of his service career  

after a lapse of twenty eight years.  

13. In Union of India Vs. Harnam Singh, (1993) 2 SCC 162, this  

Court was confronted with almost similar facts. The Court laid down  

as under :-

“In the instant case, the date of birth recorded at  the time of entry of the respondent into service as  May  20,  1934  had  continued  to  exist,  unchallenged  between 1956 and September 1991, for almost three and  a half decades.  The respondent had the occasion to  see his service-book on numerous occasions. He signed  the  service-book  at  different  places  at  different  points of time.  Never did he object to the recorded  entry.  The same date of birth was also reflected in  the  seniority  lists  of  LDC  and  UDC,  which  the  respondent had admittedly seen, as there is nothing  on the record to show that he had no occasion to see  the same.  He remained silent and did not seek the  alteration of the date of birth till September 1991,  just  a  few  months  prior  to  the  date  of  his  superannuation.  Inordinate and unexplained delay or  laches  on  the  part  of  the  respondent  to  seek  the  necessary correction would in any case have justified  the refusal of relief to him.  Even if the respondent  had  sought  correction  of  the  date  of  birth  within  five years after 1979, the earlier delay would not  have non-suited him but he did not seek correction of

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the date of birth during the period of five years  after the incorporation of Note 5 to FR 56 in 1979  either.  His inaction for all this period of about  thirty-five year from the date of joining service,  therefore precludes him from showing that the entry  of  his  date  of  birth  in  service  record  was  not  correct.”

14. In State of Tamil Nandu Vs. T.V.Venugopalan, (1994) 6 SCC  

p.302, this court was clearly of the opinion that the government  

servant should not be permitted to correct the date of birth at the  

fag end of his service career.  The Court, in very strong terms,  

observed as under :-

“.....The government servant having declared his date  of birth as entered in the service register to be  correct, would not be permitted at the fag end of his  service  career  to  raise  a  dispute  as  regards  the  correctness of the entries in the service register.  It  is  common  phenomenon  that  just  before  superannuation, an application would be made to the  Tribunal or Court just to gain time to continue in  service and the Tribunal or courts are unfortunately  unduly  liberal  in  entertaining  and  allowing  the  government employees or public employees to remain in  office, which is adding an impetus to resort to the  fabrication of the record and place reliance thereon  and seek the authority to correct it.  When rejected,  on  grounds  of  technicalities,  question  them  and  remain in office till the period claimed for, gets  expired.  This  case  is  one  such  stark  instance.  Accordingly, in our view, the Tribunal has grossly  erred  in  showing  overindulgence  in  granting  the  reliefs even trenching beyond its powers of allowing  him to remain in office for two years after his date  of superannuation even as per his own case and given  all  conceivable  directions  beneficial  to  the  employee.  It is, therefore, a case of the grossest  error of law committed by the Tribunal which cannot  be  countenanced  and  cannot  be  sustained  on  any  ground.....”

15. In Secretary and Commissioner, Home Department and others  

Vs.  R.Kirubakaran, (1994)  Suppl.(1)  SCC  155,  the  Court  again

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reiterated the legal position that the courts have to be extremely  

careful when application for alteration of the date of birth is  

filed on the eve of superannuation or near-about that time.  The  

court observed as under :-

“.......As  such  whenever  an  application  for  alteration of the date of birth is made on the eve of  superannuation or near about that time, the court or  the  tribunal  concerned  should  be  more  cautious  because of the growing tendency amongst a section of  public  servants  to  raise  such  a  dispute  without  explaining as to why this question was not raised  earlier.......”     

16. Learned counsel for the respondent has placed reliance on  

the judgment of this Court in U.P.Madhyamik Shiksha Parishad & Ors.  

Vs.  Raj Kumar Agnihotri, (2005) 11 SCC p.465.  In this case, this  

Court  has considered number of judgments of this Court and observed  

that the grievance as to the date of birth in the service record  

should not be permitted at the fag end of the service career.  

17. In another judgment in  State of Uttaranchal & Ors. Vs.  

Pitamber Dutt Semwal, (2005) 11 SCC p.477, the relief was denied to  

the government employee on the ground that he sought correction in  

the service record after nearly 30 years of service.  While setting  

aside the judgment of the High Court, this Court observed that the  

High Court ought not to have interfered with the decision after  

almost three decades.   

18. Two decades ago this Court in Government of A.P.& Anr. Vs.  

M.Hayagreev  Sarma, (1990)  2  SCC  p.682,  has  held  that  subsequent  

claim for alteration after commencement of the rules even on the  

basis of extracts of entry contained in births and deaths register  

maintained under the Births, Deaths and Marriages Registration Act,

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1886,  was not  open. Reliance  was also  placed on  State of  Uttar  

Pradesh & Ors. Vs.  Gulaichi (Smt.), (2003) 6 SCC p.483,  State of  

Tamil Nadu Vs. T.V.Venugopalan, (supra), Executive Engineer, Bhadrak  

(  R  &  B)  Division,  Orissa  &  Ors. Vs.  Rangadhar  Mallik, (1993)  

Suppl.1 SCC p.763,  Union of India Vs.  Harnam Singh, (supra) and  

Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran,  

(surpa).  

19. These decisions lead to a different dimension of the case  

that correction at the fag end would be at the cost of large number  

of  employees,  therefore,  any  correction  at  the  fag  end  must  be  

discouraged by the Court. The relevant portion of the judgment in  

Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran,  

(surpa) reads as under :

“An application for correction of the date of birth by  a public servant cannot be entertained at the fag end  of his service.  It need not be pointed out that any  such direction for correction of the date of birth of  the public servant concerned has a chain reaction,  inasmuch as others waiting for years, below him for  their  respective  promotions  are  affected  in  this  process.   Some  are  likely  to  suffer  irreparable  injury, inasmuch as, because of the correction of the  date of birth, the officer concerned, continues in  office, in some cases for years, within which time  many officers who are below him in seniority waiting  for their promotion, may lose the promotion forever.  According to us, this is an important aspect, which  cannot be lost sight of by the court or the tribunal  while examining the grievance of a public servant in  respect of correction of his date of birth.  As such,  unless a clear case on the basis of materials which  can be held to be conclusive in nature, is made out by  the respondent, the court or the tribunal should not  issue a direction, on the basis of materials which  make such claim only plausible and before any such  direction is issued, the court must be fully satisfied  that  there  has  been  real  injustice  to  the  person  concerned  and  his  claim  for  correction  of  date  of  birth has been made in accordance with the procedure

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prescribed,  and  within  time  fixed  by  any  rule  or  order.  The onus is on the applicant to prove about  the  wrong  recording  of  his  date  of  birth  in  his  service-book.”

20. In  view of  the consistent  legal position,  the impugned  

judgment cannot be sustained and even on a plain reading of the  

Notification  and  the  instructions  set  out  in  the  preceding  

paragraphs  leads  to  the  conclusion  that  no   application  for  

alteration  of date  of birth  after five  years should   have  been  

entertained.  

21. The approach of the   High   Court   in   re-writing  the  

rules  cannot  be  approved  or  sustained. Consequently, the appeal  

filed  by  the State of Maharashtra is allowed and the impugned  

judgment is set aside, leaving the parties to bear their own costs.

................J. (DALVEER BHANDARI)

................J. (DEEPAK VERMA)

NEW DELHI; 16TH NOVEMBER, 2010